In yesterday’s blog, http://blogs.ilw.com/entry.php?10251...ocessing-Plant, I discussed Washington Potato Company reaching a settlement agreement with the Immigrant and Employee Rights Section (IER) of the Justice Department related to its unfair documentary practices of requesting work-authorized non-U.S. citizens to present specific documents to confirm their status, while not subjecting U.S. citizens to such requests.

In today’s blog, I will discuss more about unfair documentary practices. Unfair documentary practices was formerly referred to as document abuse. It refers to discriminatory practices related to the verification of employment eligibility in the Form I-9 process. Employers that treat individuals differently based on national origin or citizenship commit unfair documentary practices when they engage in one of four types of activity: 1) Improperly requesting that employees produce more documentation than is required to show identity and employment authorization; 2) Improperly asking employees to produce a particular document to show identity or employment eligibility; 3) Improperly rejecting documents that appear to be genuine and be-longing to the employee; and 4) Improperly treating groups of applicants differently (for example, based on looking or sounding foreign) when they complete Forms I-9.

The following are examples of prohibited practices when they are based on an employee’s “national origin’ or “citizenship or immigration status”:

Setting different employment eligibility verification standards or requiring different documents based on national origin or citizen-ship status;

Requesting to see employment eligibility verification documents before hire and completing the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen;

Refusing to accept a document or to hire an individual because an acceptable document has a future expiration date;

Limiting jobs to U.S. citizens, unless a job is limited to citizens by law or regulation;

Asking to see a document with an employee’s “Alien” or “Admission number” when completing Section 1 of Form I-9; and

Asking a lawful permanent resident to re-verify employment eligibility because the person’s green card has expired.

For more information on avoiding unfair documentary practices and many other issues related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.

Ms. Rainwater was employed as a certified nursing assistant at Doctor’s Hospice for several years. At that time, she was a lawful permanent resident (LPR). In November 2013, Doctor’s Hospice conducted an annual review of its employees’ personnel files to ensure none of its employee documentation, such as certifications, had expired. In this review, the Administrator discovered Ms. Rainwater’s LPR card had expired. Thereafter, Ms. Rainwater was informed she was suspended until she could present a valid LPR card.

Ms. Rainwater contacted the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) (now renamed Immigrant and Employee Rights Section (IER) of the Department of Justice), who informed her that Doctor’s Hospice’s action was discriminatory. OSC called Doctor’s Hospice and explained even if a LPR card expires, the individual’s LPR status has not ended. During the suspension, Ms. Rainwater told her supervisor, Ms. Charleston, that she had called the Department of Justice. Ms. Charleston reiterated she could not work with an expired LPR card. (It’s unclear whether this conversation occurred before or after OSC’s call to Doctor’s Hospice). Doctor’s Hospice’s Director of Nursing said she received a phone call from the Department of Justice, who said LPR cards never expire. Several days later, Ms. Rainwater was reinstated, but without back pay for the two weeks off.

When Ms. Rainwater returned to work, she said most of the managers did not speak to her. One manager, Ms. West, allegedly stated the facility had the “best lawyer” and “nobody beat or play with my lawyers.” She also allegedly said “you should have talked to me about his prior to going to the Department of Justice to complain about these things.”

On January 8, during an ice storm, a pipe burst at this facility causing a shutdown and the layoff of all employees. On February 27, the facility reopened but it was not fully occupied with patients; thus, two employees were not rehired - Ms. Rainwater and one other employee. Doctor’s Hospice asserted Ms. Rainwater was one of the two employees not rehired because of her poor work record and performance. Thereafter, Ms. Rainwater filed a charge with OSC alleging her failure to be rehired was retaliation and the original suspension was also unlawful.

Suspension Claim

OCAHO found Ms. Rainwater’s suspension claim failed because the statute only “prohibits an employer from discriminating with respect to hiring, recruitment, referral or discharge.” The statute does not cover certain employment actions, such as suspension, compensation, or shift assignments.

However, Doctor’s Hospice’s actions in requesting an unexpired LPR card from Ms. Rainwater was determined to be an act of document abuse under 8 U.S.C. §1324b(a)(6). However, Ms. Rainwater is not a protected individual under that section because she was not a recent permanent resident. Ms. Rainwater had been a LPR for almost 10 years. To be covered, individuals must have not held LPR status for no longer than six months beyond becoming eligible to naturalize. Ms. Rainwater became eligible to naturalize approximately five years before the request for an unexpired LPR card.

Failure to be Rehired Claim

Concerning the failure to rehire Ms. Rainwater to work when the facility reopened, OCAHO found Ms. Rainwater’s evidence did not support her retaliation claim. Initially, OCAHO noted that even though she was not considered a protected individual for the document abuse claim, OCAHO retained jurisdiction over her retaliation claim. Specifically, Ms. Rainwater engaged in protected conduct when she contacted OSC about her suspension due to an expired LPR card. Furthermore, Doctor’s Hospice knew of the contact through Ms. Rainwater telling Doctor’s Hospice and a telephone call from OSC explaining that LPR cards do not expire.

OCAHO concluded Ms. Rainwater failed to establish a causal link between her protected conduct and the failure to be rehired. Although the time period between the telephone call to OSC and the termination was less than three months, OCAHO found intervening events – the ice storm, closure of the facility, and subsequent reopening of the facility with less than full capacity - broke the claim of causality in the retaliation claim. OCAHO said these events caused the end of Ms. Rainwater’s employment, not retaliation. Furthermore, the fact that Doctor’s Hospice returned Ms. Rainwater to work in December after the phone call to OSC undercut her assertion of a causal link between contacting OSC and her failure to be rehired. Finally, OCAHO found Doctor’s Hospice comments about Ms. Rainwater’s contact with OSC were not sufficient to establish the causal link. Thus, OCAHO dismissed Ms. Rainwater’s retaliation claim.

This decision is a firm reminder of who is covered and what is covered by Section 1324b cases. Often, employers are so focused on complying with the I-9 requirements, they inadvertently commit citizenship status discrimination under Section 1324b. One idea to combat this problem is to have an immigration compliance attorney conduct a training session on immigration compliance.

By Bruce Buchanan, Sebelist Buchanan Law
The Justice Department’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached an agreement with Brickell Financial Services Motor Club, Inc., d/b/a Road America Motor Club, Inc. (Road America), headquartered in Miami, Florida. The settlement resolves the IER’s investigation into whether the company violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.

The IER concluded, based on its investigation, that Road America routinely requested that lawful permanent residents show their Permanent Resident Cards to prove their work authorization but did not request specific documents from U.S. citizens. The investigation further revealed that Road America required lawful permanent resident employees to re-establish their work authorization when their Permanent Resident Cards expired, even though federal rules prohibit this practice. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.

Under the settlement, Road America will pay a civil penalty of $34,200 and pay $1,044 to compensate a worker who lost wages due to its unfair documentary practices. Road America has also agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

Unfortunately, the errors made by Road America are common among many employers. A good immigration training program could avoid these mistakes.

The Office of Chief Administrative Hearing Officer (OCAHO) issued an interesting decision involving “document abuse” which was recently renamed “unfair documentary practices” in the new regulations. U.S. v. Mar-Jac Poultry, Inc., 12 OCAHO no. 1298 (March 2017). It was a split decision with the Administrative Law Judge (ALJ) for OCAHO finding Mar-Jac Poultry committed many document abuse violations while other allegations were not document abuse.

The case started with a charge filed by Edwin Morales, a TPS recipient, with the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) alleging document abuse. Thereafter, OSC informed Mar-Jac that it was expanding its investigation to include “a possible pattern or practice of document abuse against non-U.S. citizens.”

Based on its investigation, the OSC filed a complaint with OCAHO alleging in Count I – Mar-Jac committed document abuse against Morales and “other similarly situated persons” and Count II – Mar-Jac engaged in a “pattern or practice of discrimination in the hiring and Employment Eligibility Verification Process.”

In its Motion for Summary Judgment, Mar-Jac argued the statute only prohibits document abuse as it relates to protected individuals - U.S. citizens (USCs), recent lawful permanent residents (LPRs), refugees and asylees. Since Morales was a TPS recipient with an Employment Authorization card (EAD), Mar-Jac argued he was not protected regarding the document abuse allegations. The ALJ determined that “claims of document abuse with an intent or purpose of discriminating against an individual based on citizenship status is limited to claims against statutorily-defined protected individuals as defined in 8 U.S.C. § 1324b(a)(6).” Since Morales was on TPS, the ALJ agreed with Mar-Jac’s defense that Morales was not a protected individual.

Concerning Count II – whether Mar-Jac engaged in a pattern or practice of discrimination, Mar-Jac conceded its HR employees required potential applicants to present a photo ID and a Social Security card in order to obtain an employment application. Without such, Mar-Jac did not provide them with an application.

Also, if a person checked a box on Section 1 of the I-9 form as a LPR or authorized to work and presented Lists B and C documents, such as a driver’s license and Social Security card, respectively, the Mar-Jac HR employee would request the LPR card or EAD. Mar-Jac’s witnesses stated this request was made to make sure the card was valid and they believed E-Verify required non-USCs to present their LPR card or EAD. The witnesses acknowledged they were mistaken in their beliefs. Mar-Jac conceded USCs were not requested to present a particular document.

Mar-Jac argued it had a legitimate, non-discriminatory reason, to verify the correct box was marked in Section 1, when its HR employees asked non-USCs to see their List A document – LPR card or EAD. Mar-Jac asserted it followed this practice in order to have Sections 1 and 2 accurately completed and to avoid non-compliance with the completion of the I-9 form, which could cause civil and criminal liability. Mar-Jac also argued it required non-USCs to present a List A document because of a mistaken belief that E-Verify required it; thus, it had no discriminatory intent. Furthermore, Mar-Jac asserted requests related to E-Verify are not covered by 8 U.S.C. § 1324b; thus, no violations should be found.

To establish a case of document abuse, the decision stated a complainant must show (1) “that, in connection with the employment verification process required by 8 U.S.C. § 1324a(b), an employer has requested from the employee more or different documents than those required or has rejected otherwise acceptable valid documents and (2) that either of these actions was undertaken for the purpose or with the intent of discriminating against the employee on account of the employee’s national origin or citizenship status.”

One of the issues in the case was the requisite intent required to prove the violations. The OSC asserted U.S. v. Life Generations, a 2014 OCAHO decision, stated an intent to discriminate means that a person “would have acted differently but for the protected characteristic.” Mar-Jac argued it had no intent to discriminate because a significant portion of its workforce were non-USCs. Furthermore, their actions were merely designed to “assist the applicant in satisfying the requirements of the Form I-9.” The ALJ stated discriminatory intent does not require “malice, ill will, or a malevolent nature.” Thus, Mar-Jac’s arguments were without merit.

The ALJ concluded the testimony of Mar-Jac’s HR employees established direct evidence of discriminatory intent – the requests to see a DHS-issued document, LPR card or EAD, was motivated by the individual’s LPR or work-authorized status. Thus, the ALJ found the company “engaged in prohibited documentary practices by virtue of both specifying the kind of document that a new hire had to present, and requesting an additional document when a new hire sufficiently presented Lists B and C documents. Moreover, Mar-Jac’s documentary practices were carried out for the purposes of satisfying employment verification requirements of 8 U.S.C. § 1324a(b).”

As for Mar-Jac’s remaining defense that it completed Section 1 as the preparer/translator and thus it needed to verify the information listed to avoid civil and criminal liability, the ALJ stated, “Although the preparer/translator attestation in Section 1 requires an attestation that the information contained therein is true and correct to the best of the preparer/translator’s knowledge, that standard does not require absolute metaphysical certainty – or even actual knowledge – regarding the information from the preparer/translator and in no way requires an employer to ask to see a document to verify the information.”

Therefore, the OCAHO ALJ found Mar-Jac committed the violations alleged in Count II. A determination on the civil penalties and back pay were left for a later time. Furthermore, Mar-Jac has the right to appeal the ALJ’s decision to the Chief Judge of OCAHO.

This decision shows employees can be mistaken on the proper manner to complete the I-9 form. Therefore, it is crucial that employers obtain regular training from immigration counsel on immigration compliance issues.

The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division has reached a settlement agreement with Pizzerias, LLC, a pizza restaurant franchisee with 31 locations in Miami, Florida, where Pizzerias will pay a $140,000 civil penalty. The agreement resolves the IER’s investigation into whether Pizzerias violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.

The investigation concluded Pizzerias routinely requested that lawful permanent residents produce a specific document – a Permanent Resident Card (green card) – to prove their work authorization, while not requesting a specific document from U.S. citizens. This is referred to as document abuse. Lawful permanent residents may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on citizenship or national origin.

Under the settlement, Pizzerias must pay a civil penalty of $140,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements for two years.

The first two settlements by IER in Trump administration seem to reflect that the IER will continue to aggressively pursue employers that violated the INA.